Extending H4 after 2 years lapse

[myk110]

I need some urgent help on this issue. Any suggestion or advice would be greatly appreciated.

We both (my wife and I) are on pending I-485 status. My wife has gotten her EAD a couple of times already, hoping to get employed. And as of now, her current EAD is valid for one more month. Although she never found a suitable employement, so she never used her EAD. I have been keeping my H1B valid all along, but have decided not to extend hers, when I extended mine, a couple of years ago. Therefore, her H4 status (and I-94) has expired since a couple of years now. She is currently on EAD, and also on a pending AOS, so I am not sure if she is considered out of status.

I want to apply for her H4 again along with my I-129 application for extension. We will be visiting our home county in January, and are hoping to get our visa stamping there. My question is whether or not I can apply for her H4 along with my H1B application at this time. If so, what do we write in her I-539 form for Current Nonimmigrant Status? And should I select "extension of current status", or "change of status". Not sure how either of those available options would apply in her case.

My reasoning tells me that, it shouldn't matter if her H4 is not current, because as a dependent she can get H4 anytime based on my valid H1B. Plus, we are planning to get visa stamp in our home country anyways.

Please advice. Thanks!

[kabkaba]

I think you should discuss this with an experienced immigration attorney.

IMO, there is no need to file I-539 alongwith your H1 petition. She can use the approved H1 petition to apply for her H4 Visa when she goes abroad and return in H4 status. She can still use her EAD even after she returns in H4 status. But she should get approved AP before she leaves the US.

[myk110]

Thanks... but

We do not want to use both H4 and AP for her, we would rather just use H4, since it would have a 3 years validity compared to the 2 years of AP. I know it's safer to have both, but spending another $360 or so for that level of safety is a concern.

I know that she can get her H4 stamp when we go abroad, but if possible, we want to have an approved petition on hand before leaving the country. So, the question is, CAN WE file her I-539 along with my H1 extension now, with her current status? If so, what do write on those two fields - "current nonimmigrant status" and "application type"?

Thanks for your advice!

I think you should discuss this with an experienced immigration attorney.

IMO, there is no need to file I-539 alongwith your H1 petition. She can use the approved H1 petition to apply for her H4 Visa when she goes abroad and return in H4 status. She can still use her EAD even after she returns in H4 status. But she should get approved AP before she leaves the US.

[kabkaba]

We do not want to use both H4 and AP for her, we would rather just use H4, since it would have a 3 years validity compared to the 2 years of AP. I know it's safer to have both, but spending another $360 or so for that level of safety is a concern.

I know that she can get her H4 stamp when we go abroad, but if possible, we want to have an approved petition on hand before leaving the country. So, the question is, CAN WE file her I-539 along with my H1 extension now, with her current status? If so, what do write on those two fields - "current nonimmigrant status" and "application type"?

Thanks for your advice!

You already have an approved petition in hand, the H1 petition. That's all she will need to apply for her H4 Visa. There is no such thing as H4 petition.

Since you are out saving money, you should save the I-539 filing fee as well.

[myk110]

Thanks!

Makes sense.. Thanks!
Do you think not having a valid non-immigrant status for 2 years could cause issues with her H4 stamping? She is on pending I-485 status, which is a valid legal status.

You already have an approved petition in hand, the H1 petition. That's all she will need to apply for her H4 Visa. There is no such thing as H4 petition.

Since you are out saving money, you should save the I-539 filing fee as well.